The burden of proof lies with the landlord to establish the exemption from the Act, and the absence of a written agreement with a forfeiture clause precludes the application of Section 114 of the Transfer of Property Act.

1. Heard Sri Pramod Kumar Srivastava, learned counsel for the tenant-revisionist as well as Sri Atual Dayal, learned counsel for the landlord-opposite party and perused the record.

2. Present revision has been filed challenging the impugned judgment and decree dated 7.12.2015 passed by the Additional District Judge/Judge Small Causes Court, Kanpur Nagar in Suit No. 55 of 2008 (Ali Ahad and another vs. Irshad Alam).

3. Brief facts of the present case are that the landlord-plaintiff (opposite party herein) filed SCC suit against the tenant-defendant (revisionist herein) for rent and eviction seeking eviction of defendant from the shop in question being Shop No. 100/484, Colonelganj, Kanpur Nagar on the ground that the defendant is tenant in the shop in question w.e.f. 1.9.1992 on rent payable at the rate of Rs. 600/-per month plus water tax etc. It was alleged that because of new construction of the shop in question in the year 1990, the provisions of Act No. 13 of 1972 (hereinafter referred to as the 'Act') are not applicable in the present case. It was stated that despite of the notice dated 5.3.2008, the arrears of rent were not paid and the shop in question was not vacated. It was stated that the aforesaid notice dated 5.3.2008 was returned with the endorsement of 'refused' by the postal department on 10.3.2008 and notice sent through certificate of posting was personally served on the defendant. Hence the suit.

4. The defendant contested the suit and filed his written statement wherein it was specifically pleaded that shop in question is an old construction and provisions of the Act are fully applicable. It was further asserted that the defendant is tenant at the rate of Rs. 200/-per month inclusive of all taxes only and upto date rent has been paid to the plaintiff but he did not give any receipt of rent. It was also stated that the notice sent by the plaintiff was duly replied by him and he has never refused to receive any notice.

5. Oral as well as documentary evidence was given by both the sides. The plaintiff, in particular filed copy of the notice dated 5.3.2008, sealed cover receipt after endorsement of refusal, notice dated 28.11.2007, notice dated 14.12.2007, order passed by the Kanpur Development Authority (hereinafter referred to as the 'KDA”) and the original map sanctioned by the KDA. The plaintiff appeared as PW 1 and was cross-examined. The defendant appeared as DW 1 and he was also cross-examined. The defendant in documentary evidence produced various tender receipt regarding deposit of rent and also filed panchshala of the year 1987 regarding building no. 100/484, Colonelganj, Kanpur Nagar.

6. Six issues were framed by the trial Court. Issue no. 1 whether defendant is tenant at the rate of Rs. 600/-per month or not, was decided in favour of the defendant holding that the plaintiff has failed to prove the rent payable at the rate of Rs. 600/-per month and as such, the rate of rent was held to be Rs. 200/-per month as asserted by the defendant. Issue no. 2 whether the defendant was liable to pay 18% water tax and sewer charge apart from the rent, was decided against the plaintiff holding that all such taxes are included in the rent payable at the rate of Rs. 200/-per month and the taxes were not payable separately. Issue no. 3 was as to whether the defendant is in default of rent since 1.6.2004 and it was found that he has committed default in making payment of rent. Issue no. 5 whether the provisions of the Act 1972 are applicable in the present case or not, was decided against the defendant by holding that the Act is not applicable as the construction of the building is of the year 1990 and in cross-examination the defendant has admitted that the building was constructed in the year 1990 or 1991. On the basis of this finding, the benefit of deposit of rent made by the defendant was not extended to the defendant as the Act itself was found to be not applicable. Issue no. 4 was as to whether the notice d